Measures and Consultation: How to Run a TUPE Consultation Process That Holds Up to Scrutiny

Maxcene Crowe
4 hours ago
5 min read

The Cost of Getting It Wrong

Picture this: a cleaning contract retender. The incoming provider wins, mobilisation starts at speed, and HR sends a single email to transferring employees explaining the new rota. No meeting. No written measures disclosure. No elected representatives. The outgoing contractor never consulted at all, assuming the incoming provider would handle it.

Three months later, the new contractor is defending 27 tribunal claims — each worth up to 13 weeks' pay. The joint and several liability clause means both providers are exposed. The client is managing a grievance escalation. What looked like a clean transition has become a reputational and financial drain, and the root cause is simple: the consultation process was treated as a formality rather than a legal obligation.

TUPE consultation is not a checkbox. It is a structured, documented, two-way process with real legal consequences when it fails. This guide sets out exactly what that process looks like in an FM context.

What "Inform and Consult" Actually Means Under Regulation 13

Regulation 13 of the TUPE Regulations 2006 creates two distinct obligations: informing employees and consulting them. FM teams routinely conflate the two, which is where the legal exposure begins.

Informing means delivering specific written information to employee representatives before the transfer. This is a one-way duty — it is about what you tell employees, not about getting their agreement.

Consulting means engaging in meaningful dialogue about any measures the employer envisages taking in connection with the transfer. This is two-way. It requires you to listen, consider, and respond. You cannot consult via a single all-staff briefing and call it done.

The GOV.UK TUPE guide is clear: consultation must be conducted "with a view to seeking agreement" with representatives. That does not mean you have to agree — but it does mean the dialogue must be genuine, not performative.

Who Must Be Consulted

Both the outgoing and incoming provider carry consultation obligations. The duty falls on both parties in relation to their own affected employees — not just those transferring.

If a cleaning contract retender leads to restructuring on the incumbent side (for example, supervisory staff being redeployed), those employees are also "affected" and must be included in consultation.

Where a recognised trade union exists, consultation happens through union representatives. Where there is no union — which is common across FM contracts — affected employees must elect appropriate representatives for the purpose of consultation. The employer is responsible for facilitating that election process. Skipping it because "the contract is short-term" or "the workforce is transient" is not a defence.

The "Measures" Obligation — Be Specific, Be Early

"Measures" is the term that catches FM teams out more than any other. Under Regulation 13, if you envisage taking any measures in connection with the transfer, you must disclose them and consult on them.

In FM terms, measures include:

Rota changes — shift patterns, weekend working, split shifts on a TFM transition
Supervision structures — changes to reporting lines, removal of team leader roles
Uniform and PPE policies — a new provider's branding or equipment requirements
Pay harmonisation attempts — aligning pay grades across an integrated team
Location changes — where an employee will be based after a security contract transfer
Terms standardisation — moving employees onto the incoming provider's standard contract terms

The test is not whether you have made the decision — it is whether you envisage taking the measure. If it is in your mobilisation plan, it must be in your consultation disclosure. DCS Group's FM TUPE guidance notes this as one of the most common failure points in FM transfers: providers disclose at a generic level and then implement measures the workforce was never told about.

The Minimum Information That Must Be Provided

Regulation 13 sets out the information that must be given in writing to representatives long enough before the transfer to allow for meaningful consultation:

The fact that the transfer is happening and the proposed date
The reason for the transfer
The legal, economic and social implications for affected employees
The measures envisaged — or, if none, a statement to that effect

"Long enough before" is not defined in the Regulations, but Employment Tribunal case law has consistently interpreted this as giving representatives sufficient time to genuinely engage. For complex FM mobilisations — particularly TFM transitions or multi-site security retenders — that typically means at least four to six weeks.

What a Defensible Consultation Process Looks Like

A legally defensible process has the following components:

Written notification to representatives — confirming the transfer date, reason, and all measures envisaged. Issued before consultation begins, not during it.
A genuine meeting — not a briefing. Representatives must have the opportunity to raise questions and concerns, and you must record your responses.
Written records — minutes or notes of every consultation meeting, signed off where possible. If it is not documented, it did not happen.
A written response to concerns raised — if representatives raise objections to proposed measures, you must respond in writing and explain your reasoning. Disagreement is acceptable; silence is not.
Adequate time — the process cannot be compressed to two days to suit a mobilisation timeline. The timeline must accommodate the consultation, not the other way around.

RFM Group's TUPE in FM resource highlights that FM providers often treat consultation as the final stage of mobilisation, when it should be one of the first.

What Happens When Consultation Fails

Failure to inform and consult under Regulation 13 exposes both the outgoing and the incoming provider to a protective award of up to 13 weeks' pay per affected employee. This is joint and several liability — either party can be held fully liable regardless of which one failed to act.

On a 50-person cleaning transfer where the outgoing contractor paid average wages of £28,000 per year, maximum exposure is approximately £350,000. That is before legal costs, management time, and reputational damage to the client relationship.

CIPD HR-inform tracks a consistent pattern in case law: tribunals award maximum or near-maximum protective awards where employers have made no genuine attempt to consult, or where consultation was clearly a one-way announcement dressed as dialogue.

Practical Tips for FM Mobilisation Teams

Start before contract award. Begin identifying who will be affected as soon as you are shortlisted. You cannot consult fast enough if you only start after award.
Map your measures early. Go through your mobilisation plan line by line and identify anything that changes working conditions, structure, or location. Every item is a potential measure.
Appoint or elect representatives properly. Facilitate the election process for non-unionised workforces. Document the outcome.
Do not use consultation as a one-way announcement. If no one ever changed their mobilisation plan as a result of consultation feedback, your process was not consultation.
Coordinate between incoming and outgoing providers. Each has its own legal obligations. Neither can rely on the other to cover the gap.
Keep records at every stage. Date-stamped emails, signed meeting notes, written responses to concerns raised — all of it.

Develop Your TUPE Expertise with MCFM Academy

TUPE consultation is a specialism, and getting it wrong costs contracts. MCFM Academy offers two structured courses for FM professionals who want to build genuine competence:

Mastering TUPE: Process and Compensation Strategies — A 1.5-hour course covering the full TUPE process, compensation frameworks, and how to manage transitions with confidence. Priced at £45.

MCFM00132: Mobilising Human Resources and TUPE in Facilities Management — A deeper FM-specific course covering HR mobilisation, TUPE obligations, and practical frameworks for complex transitions.

If your team is managing a TUPE transfer — whether a cleaning retender, a security outsourcing, or a full TFM mobilisation — the time to build that knowledge is before the transfer happens, not after the tribunal claim lands.